Opinion
April 8, 1946.
In an action for a partnership dissolution and an accounting, a note of issue was filed about two and one-half years after issue was joined. Against defendant's motion to dismiss the complaint for lack of diligent prosecution of the action, the only reason asserted for the delay was that the plaintiff was not in financial condition to proceed. Order denying the motion to dismiss the complaint reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, without costs. Plaintiff might have applied for leave to sue as a poor person; and the reason given for delay is insufficient to excuse it. ( Rosenberg v. Pubnico Realty Corp., 258 App. Div. 1090.) Hagarty, Carswell and Adel, JJ., concur; Lewis, P.J., and Johnston, J., dissent and vote to affirm the order. [See post, pp. 944, 1016.]